Monday, April 30, 2012

In Kirby v. Immoos, 113 Cal.Rptr.3d 370, the Court of Appeal held that an employee not prevailing on a meal-rest claim (or, even one who settled the claims) could be subject to paying the employer's attorneys' fees under Cal. Lab. §218.5, which provides for two-way fee shifting. The consequences of this decision, had it been allowed to stand, would have been disastrous – no employee could risk paying an employer's attorneys' fees to pursue claims arising from meal/rest period violations. The plaintiff's claims might amount to $5,000 and the employer's fees might amount to 100X that much or more – amounts that would bankrupt the average, hourly, non-exempt worker. Since the California Supreme Court and California Legislature have repeatedly emphasized the importance of promoting wage/hour litigation under the Labor Code (see, e.g., Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094), the Court of Appeal's wage/hour claim-killing decision seemed out of line.

As we noted in Murphy, "[m]eal and rest periods have long been viewed as part of the remedial worker protection framework," and low-wage workers are the "likeliest to suffer violations of section 226.7." (Murphy, supra, 40 Cal.4th at pp. 1105, 1113-1114.) In giving no indication that section 218.5 applies to meal or rest break claims when it enacted section 226.7, the Legislature could reasonably have concluded that meritorious section 226.7 claims may be deterred if workers, especially low-wage workers, had to weigh the value of an "additional hour of pay" remedy if their claims succeed against the risk of liability for a significant fee award if their claims fail. In light of the statutory text and the legislative history of section 218.5 and section 226.7, we conclude that section 218.5's two-way fee-shifting provision does not apply to section 226.7 claims alleging the failure to provide statutorily mandated meal and rest periods.

Kirby, Slip Op. at p. 17.

The Court did not accept the employees' invitation to treat meal/rest period claims as claims for a "minimum wage" under Cal. Lab. §1194, which expressly precludes two-way fee-shifting for minimum wage and overtime claims. The Court reasoned:

As a textual matter, if plaintiffs were correct that a "legal minimum wage" refers broadly to any statutory or administrative compensation requirement or to any compensation requirement based on minimum labor standards, then section 1194's reference to "legal overtime compensation" would be mere surplusage. For, under plaintiffs' reading, overtime compensation would already be encompassed by the term "legal minimum wage."

Slip Op. at p. 8.

However, the Court left for another day the battle over whether one-way fee-shifting for employees is available for meal/rest claims in suits where they are alleged alongside overtime and minimum wage claims (Slip.Op. at p. 18) –i.e. in most cases where these claims are alleged. This battle – the sequel to Kirby v. Immoos– will most likely be where the rubber meets the road. In the meantime, employees and their advocates should continue to seek attorneys' fees for meal-rest claims alleged alongside overtime and minimum wage claims under §1194. We will also continue to seek fees under Cal. Code Civil Procedure §1021.5, which allows fee-shifting in certain cases brought to vindicate the public interest – like meal/rest litigation so often does.

Nothing in this article is intended to form an attorney-client relationship with the reader or to provide legal advice in a particular case, but is intended as commentary on a matter of general interest.

Education Equity Must Include Equity for Educators: ERA Takes on Discrimination in Academia

ERA, along with co-counsel Bryan Schwartz Law, has recently begun investigating discriminatory tenure, promotion, review, and pay practices at Pitzer College, a member of the Claremont Colleges. A female faculty member of color at Pitzer has alleged that the Pitzer president and other members of the school administration discriminated against women seeking tenure. The client is an accomplished professor who was denied tenure despite two enthusiastically positive recommendations from the College’s tenure committee and positive evaluations from her department, students, and external scholarly reviewers. Female faculty members also report gender-based pay inequities. Our client reports: “I am surprised that a college that so strongly articulates a commitment to social responsibility would not be more concerned with investigating and addressing unequal treatment and would not work harder to maintain a fair, consistent, clear, and transparent process with respect to faculty promotions. I hope that changes will be made so that all junior faculty at the institution, particularly women and women of color, are not subjected to what I have gone through.” ERA is taking on gender discrimination in schools and colleges and the workplace in collaboration with sister organizations across the country, including the American Association of University Women.

Thursday, April 12, 2012

Two hours ago, the Supreme Court finally provided the guidance every employer and non-exempt employee in California has been awaiting: what do employers have to do to comply with California’s stringent meal and rest period requirements? See Brinker Restaurant Corp. v. Superior Court (Hohnbaum), S166350 http://www.bryanschwartzlaw.com/Brinker_4-14-12.pdf

Here is what the answer seems to be:

1) Employers do not have to police employees during their meal periods to make sure they are not doing any work. However, employers also cannot control employees’ time or find subtle or not-so-subtle ways of getting employees to work during meal periods. The touchstone for meal periods is the latter: are employees truly relieved of all duty, and relieved of the employer’s control, for an uninterrupted, 30-minute period? (See Brinker, Slip Op. at p. 30, citing DLSE Opinion Letter No. 1991.06.03 (June 3, 1991) “The worker must be free to attend to any personal business he or she may choose during the unpaid meal period.”). As the Supreme Court explained, “Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please.”Brinker, Slip Op. at p. 31. If not, the employer owes a one-hour premium, under Cal. Lab. §226.7.

Bryan Schwartz Law’s amicus brief to the Supreme Court on behalf of the California Employment Lawyers Association and the Consumer Attorneys of California in this matter had urged the Court to adopt essentially a strict liability standard: that employers must ensure that no work be performed, or else pay premiums. The Supreme Court declined this invitation. The Court reasoned, “[T]he obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time. See Morillion v. Royal Packing Co. (2000) [22 Cal.4th 575, 584-585] (explaining that voluntary work may occur while not subject to an employer’s control, and its cessation may require the reassertion of employer control).

Again, control is the critical factor. The Supreme Court’s decision certainly would prevent an employee from, for example, going out to lunch, calling into his/her work voicemail without the employer’s knowledge or direction, and then saying “Gotcha!” and claiming an hour meal premium because he/she worked during lunch.

On the other hand, Brinker embracing the “provide” standard – because of all the discussion on cessation of work and relinquishing of control – does not appear to be a real victory for employers, who may have hoped the decision would put an end to meal period litigation. It won’t. If you are an employee, and your employer puts restrictions on what you can do with your meal period, or pushes you to get work done in a way that makes you work through lunch, then you still may assert meal period claims. You must have a “reasonable opportunity” to take your meal period, that is not impeded or discouraged or controlled by the employer. See Brinker, Slip Op. at p. 36.

PS – if the employer relinquishes control, and an employee chooses to work – with the employer’s knowledge – then the employer must still pay straight time wages for the time worked, but need not pay an additional premium. See Brinker, Slip Op. at p. 35 n. 19. Among other practices, auto-deduct meal periods - where an employer subtracts 30 minutes a day from workers’ timesheets, but knows that employees tend to work through lunch, will seemingly remain unlawful.

2) Employers must provide a meal period by the end of five hours’ work, and another at the end of ten hours’ work. The employee had argued that the second meal period needed to be five hours after the first meal period but the Supreme Court rejected this timing requirement.

3) Employers must provide a ten-minute rest period if employees work over 3.5 hours, and must provide another if employees work over six hours. As far as the timing of the rest period, it should be toward the middle of each four-hour block of work, to the extent practicable – but there will not be much opportunity for asserting claims based on rest break timing, if the employer is giving employees two, ten-minute breaks in an eight-hour shift.

4) For class actions, the Supreme Court rejected the extra layer of factual analysis that the Court of Appeal was requiring, basically saying that if a court needs to look at the facts to know if a particular element is met (e.g., deciding if common issues predominate by seeing if the same policy applied to everyone) then looking at the facts of the case is appropriate – otherwise, not.

In sum, neither plaintiffs’ or defense lawyers can claim a total victory in Brinker, but certainly employees and their advocates live to fight another day, to enforce workers’ important rights to take their breaks and meal periods.

DISCLAIMER: Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement signed with Bryan Schwartz Law to be a client of the firm or this author.